Hegarty and Another v HSE
| Jurisdiction | Ireland |
| Judge | Ms. Justice Murphy |
| Judgment Date | 14 November 2019 |
| Neutral Citation | [2019] IEHC 788 |
| Court | High Court |
| Docket Number | [2015 No. 10520 P] |
[2019] IEHC 788
Murphy
[2015 No. 10520 P]
THE HIGH COURT
Personal injuries – Negligence – Catastrophic injuries suffered by minor following birth - Civil Liability (Amendment) Act 2017
Facts: The plaintiff, a minor, suffered catastrophic injuries in the hours following his birth as a result of negligence and breach of duty by the defendant. Liability was admitted following the issue of a personal injuries summons. Settlement terms were agreed in the context on impending legislation regarding periodic payment orders for life, namely the Civil Liability (Amendment) Act 2017. The matter proved contentious and a motion for directions was sought. The President of the High Court directed a trial of issues regarding the new legislation.
Held by Murphy J that judgment would be made in the plaintiff’s favour. Having considered the submissions of the parties and the terms of the legislation, the Court was satisfied that the Court's jurisdiction at common law remained as it was prior to the enactment of the Civil Liability (Amendment) Act 2017.). The Court still retained jurisdiction to make a lump sum award.
The plaintiff is a minor and a ward of court. The plaintiff was born on the 10th December 2014. In the hours following his birth, by reason of the negligence and breach of duty of the defendant, he suffered catastrophic injuries. A personal injuries summons was issued on his behalf on the 16th December 2015. The matter was set down for trial on the 10th March 2016. On the 11th May 2016, the defendants admitted liability for the minor plaintiff's injuries. On the 13th July 2016, an interim payment of €100,000 was approved by Cross J. The case was listed for hearing on the 25th October 2016 and on that date the case was settled and ruled by Cross J. The settlement occurred against a backdrop of impending legislation to provide for periodic payment orders for life. The settlement terms reflected this and an interim order was made for payment of a sum of €1,600,000 to include €400,000 general damages and the previous interim payment of €100,000. The payment is expressed to satisfy all the plaintiffs’ claims to the 22nd October 2019. The balance of the plaintiff's claim to include claims for the cost of future care was adjourned to the 22nd October 2019.
On the 7th December 2016, the minor plaintiff was taken into wardship and his parents Justin and Jacinta were made joint guardians of his fortune.
On the 30th November 2017, the Civil Liability ( Amendment) Act 2017 was passed. The heading of the bill states inter alia: -
“An Act to amend the Civil Liability Act 1961 to provide for the award of damages by way of a periodic payments order in certain circumstances where a plaintiff has suffered catastrophic injuries”.
Part 2, s. 2 deals with periodic payment orders by the insertion of Part IV(B) into the Civil Liability Act 1961. The new Part IV (B) sets out the law in relation to periodic payments orders in eight lettered sections appended to s. 51 of the Civil Liability Act. The Act was commenced on the 1st day of October 2018 by a commencement order contained in Statutory Instrument S.I. no 377 of 2018. On the same date the Superior Court Rules Committee made Rules of Court to provide for the operation of the new periodic payments orders law. These are contained in S.I. 430 of 2018.
As we shall see in 2018 and early 2019 the minor plaintiff's solicitors were focusing their attention on the hearing of the balance of the minor plaintiff's claim, which was due to be heard on the 22nd October 2019. In short, they suggested to the defendant that a further interim payment was more appropriate than a periodic payments order. The defendant's initial reaction was that as the legislation was now in place providing for a periodic payments order, their general policy was to seek such an order. Again, as we shall see, their position on this issue evolved over the period leading to this hearing.
The failure to agree the process for dealing with the outstanding elements of the plaintiff's claim led the plaintiff's solicitor to issue a motion for directions, returnable before the President on the 24th June 2019. The plaintiff sought an order directing the assessment of the plaintiff's damages to proceed on an interim basis for a further three years and for further and other relief as the court may deem fit.
On the 15th July 2019, based on the affidavits filed in support of the motion and an opinion of senior counsel which is not before this Court, on consent, the President directed trial before a judge of the High Court on the 22nd October 2019 of the following issues: -
(i) Whether or not the legislation itself ousts the inherent jurisdiction of the court to assess damages for the ward's needs for three years from next October without imposing the PPO regime under the 2017 Act, whether by reference to the best interests of the ward or otherwise?
(ii) If jurisdiction is not ousted, a determination as to what are the best interests of the plaintiff herein (interim three-year assessment or PPO)?
(iii) Whether the court is precluded by the 2017 Act from fixing an increase other than the amount specified in the HICP?
(iv) Whether and to what extent the court retains a jurisdiction to identify a means by which indexation of the recurring payment can be achieved that would avoid the risks of the recurring compensation falling behind having regard to wage and medical inflation?
The court further ordered that the issues set out in its order, be reproduced in the form of an issue paper, and that the plaintiff, by Wednesday the 17th September 2019, file witness statements and the defendants, by Friday 4th October 2019, file their witness statements.
Finally, the court approved a further interim settlement of €350,000, pending the trial of the issues. The sum was expressed to be on account of the damages which may be ultimately awarded. That sum was approved and was subsequently lodged to the benefit of the infant plaintiff's account in the Wards of Court office. Liberty to apply was granted.
Subsequently, an issue paper reciting verbatim the terms of the order of the President was produced on the 26th July 2019.
The background and context in which the motion for directions came before the President are well set out in the affidavits filed in the motion for directions. In her grounding affidavit, Marian Fogarty, solicitor for the plaintiff avers: -
“I say that the plaintiff's date of birth is the 10th December 2014 and he is four and a half years of age. Following the plaintiff's birth, he acquired a hypoxic brain injury due to the negligence and breach of duty of the defendants, its servants and/or agents in the care, management and control of the infant plaintiff while under their care at Cork University Maternity Hospital within two hours of his birth on the 10th December 2014. An MRI brain scan performed on Day 5 of the plaintiff's life showed an abnormal signal in the basal ganglia bilaterally which was in keeping with a hypoxic ischaemic injury.
As a result of suffering the hypoxic brain injury, the infant plaintiff now has features of dyskenetic and spastic type cerebral palsy characterised predominantly by motor disability and coordination difficulties.
I say that proceedings issued on behalf of the plaintiff on the 16th December 2015 against the defendant by way of personal injury summons”.
Liability was admitted by the defendant on the 11th May 2016 and the case proceeded after that time as an assessment of damages only.
I say that on the 25th of October 2016 an agreement was entered into between the parties and proceedings were compromised. The terms of settlement dated the 25th October 2016 are attached to the order of the High Court dated 25th October 2016. An interim settlement was approved on behalf of the minor plaintiff for a three – year period. The plaintiff's loss of earnings and future accommodation costings were adjourned. It was envisaged that at the expiration of that initial three – year period that the further damages would be assessed on either a lump sum or further interim settlement or PPO. The plaintiff has made it clear for some time, his preference for a further interim settlement.
I further say by order of the High Court dated the 7th December 2016 the minor plaintiff was made a ward of court.
The infant plaintiff has resided full time with his parents, Justin Hegarty and Jacinta Collins along with his sister Lucy in California since in or around the 1st January 2017. The plaintiff has been engaging in a myriad of different intensive therapies including Anat Baniel therapy, physical therapy, speech and language therapy, etc. to assist with his various disabilities.
The plaintiff has returned home during the months of May and June 2019 specifically to undergo various assessments to prepare for his own case listed for hearing later this year and also to undergo assessments at the request of the defendant.
The case is especially fixed for hearing before this honourable Court on the 22nd October 2019”.
Recent inter partes correspondence
By email dated the 9th April 2018, this firm informed the solicitors for the defendant that the heads of claim for further assessment in 2019 would include all those set out in the schedule of items attached to the interim agreement dated the 25th October 2016, to include care, therapies, accommodation costs, equipment etc. Therefore, the defendant has been aware for over a year as to the heads of claim to be advanced at the October 2019 hearing.
By letter dated the 30th August...
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